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JAME.5 IREDELL 



1751-1799 



Lawyer, Statesman, Jud^e 



BY 

H. G. CONNOR 

Jud^e United States Court, Eastern District 
of North Carolina 



Reprinted From the 

North Carolina Booklet 

April, 1912 



Raleigh 

Edwards s Broughton Printing Co. 

1912 






Author 



JAMES IREDELL 

1751=1799^ 



By H. G. CONNOR, 

Judge United States Court, Eastern District North Carolina. 



"The character of this excellent man has been too little known. 
Similar has been the fate of many other valuable characters in 
America. They are too little known to those around them; their 
modest merits have been too familiar, perhaps too uniform, to 
attract particular and distinguished attention." 

James Iredell was born in Lewes, Sussex County, Eng- 
land, October 5, 1751. His father, Francis Iredell, a 
merchant of Bristol, married Margaret McCulloch. The 
family were allied by blood to Sir George Macartney, the 
Earl of Wigton, the Fergusons, McCullochs, and, by mar- 
riage, to Governor Lyttleton. Henry McCulloch was con- 
nected with the Government of the Province of !North Caro- 
lina, where he owned large landed estates. Through the in- 
fluence of relatives, James Iredell was appointed Comptroller 
of the Customs at Port Roanoke (Edenton) IST. C. It was 
said at the time, "The ofiice is genteel requiring little or no 
duty, so that he will have time to apply himself to business ; 
it is worth upwards of one hundred pounds sterling a year." 
Iredell appropriated a large portion of his salary to the sup- 
port of his father and mother, thus ''illustrating in a forcible 
manner his filial piety and generous nature." He sailed for 
his new home, bringing with him his commission, and letters 
of introduction from friends in England, to several gentle- 



'The writer has, for his information relied largely upon McRee's "Life and Corres- 
pondence of James Iredell." Except as otherwise indicated herein, quotations given are 
taken from it. 



4 James Iredell. 

men in Edenton, arriving at the latter place "near the close 
of the year 1768." His biographer says of him: "He was 
then just seventeen years old, at the age when pleasures are 
enjoyed with the keenest relish. Frank, ingenuous, of pleas- 
ing appearance, winning manners, and educated in the best 
schools of England, he was kindly received and warmly wel- 
comed." 

The ancient borough of Edenton is situated on the north- 
em shore of Albemarle Sound. It was founded in 1716, and 
named in honor of Eden, the Eoyal Governor. Mr. McEee 
says of the people to whom the young Comptroller came and 
among whom he resided during the remainder of his life: 
"If there was little of the parade and pomp of older com- 
munities, if many of the appliances of luxury were wanting, 
ease and abundance were the reward of but a slight degi'ee 
of frugality and industry; the homes of the planters were 
comfortable and ample for all the purposes of hospitality; 
while their tables gi'oaned beneath dainties beyond the reach 
of wealth on the other side of the Atlantic. * * * He 
who supposes the inhabitants were untutored people is grossly 
deceived. They were not refugees from the justice of the 
old world; nor were they of desperate fortunes or undisci- 
plined minds — they were equal in cultivation, ability and pa- 
triotism to any of their contemporaries. The men were bold, 
frank, generous and intelligent ; the females tender, kind and 
polite." The town contained about five hundred inhabitants. 
Of the residents of the town were Samuel Johnston, among 
the earliest, most enthusiastic and active Whigs, President of 
the Provincial Congress, Governor, and, upon the adoption 
of the Federal Constitution, the first United States Senator 
elected from the State, a lawyer of learning, a man of deep 
and extensive reading and singular purity of life spent in 
patriotic service to the State; Joseph Hewes, signer of the 
Declaration; Thomas Barker, Thomas Jones, Jasper Charl- 



James Iredell. 5 

ton, Stephen Cabarrus, Robert Smith, Charles Johns|on, 
John Johnston, and Sir Nathaniel Duckenfield. In the ad- 
joining counties were Colonel Richard Buncombe, who, being 
mortally wounded at Germantown died in Philadelphia; 
John Harvey, Speaker of the Assembly, and later Moderator 
of the First and Second Provincial Congresses called in the 
Province (August, 1774, and April, 1775) ; and others of 
less note, but of liberal education and of honorable service 
and position. The society of the town furnished to Iredell a 
social circle of cultured and refined hospitality into which he 
at once entered. It is with Iredell's preparation for, and 
work as, a lawyer, statesman and judge that we are specially 
concerned, which precludes an entrance into the interesting 
and charming story of his personal and social life further 
than it illustrates his public career. 

Very soon after his arrival he began the study of law 
with Samuel Johnston. "Every moment of leisure was de- 
voted to his legal studies and to such intercourse with in- 
telligent gentlemen and cultivated ladies as was calculated 
to refine and improve. He was a diligent student ; he copied 
Mr. Johnston's arguments and pleas in important cases. He 
read carefully and attentively the text-books, referring to the 
authorities quoted, and collecting and digesting kindred pas- 
sages from all writers within his reach; he attended the 
courts, returned to his chamber and wrote out arguments of 
his own, applicable to the cases he had stated." A few ex- 
tracts from his "Journal" give us a fair view of the young 
Comptroller, preparing himself for the career which, all un- 
thought of, awaited him. On August 22, 1770, he writes: 
"Indolence in any is shameful, but in a young man quite in- 
excusable. Let me consider for a moment whether it will be 
worth my while to attempt making a figure in life, or whether 
I will be content with mediocrity of fame and circumstances. 
* * * But nothing is to be acquired without industry; 



6 James Iredell. 

vj and indolence is an effectual bar to improvement. * * ^ 
I have not done as mucli as I ought to have done; read a 
little in Lyttleton's Tenures and stopped in the middle of 
his Chapter on Eents ; vrhereas I ought to have gone through 

^ it. It would have been better than losing three or four games 
at billiards, N. B. — If you do play billiards make it a rule 
not to lengthen." 

We learn from his journal that, while studying Lyttleton, 
he did not neglect polite literature. He says : "I have been 
reading a volume of the Spectator, which is ever new, ever 
instructive, ever interesting. I hope they will be trans- 
mitted, with honor, to the latest ages. * * * Strength 
of reason, elegance of style, delicacy of sentiment, fertility 
of imagination, poignancy of wit, politeness of manners, and 
the most amiable pattern of human life, appears through the 
whole, in so conspicuous a manner as at once to improve and 
delight. * ■«■ * Eesumed my Spectator; read a great 
many entertaining and improving things, particularly Mr. 
Addison's Discourses on Fame, in the fourth volume, which 
are incomparably elegant and sublime. Surely the writings 
of such great, learned and good men are more than a counter- 
poise to the libertine writings of professed Deists, whose im- 
moral lives made them dread an encounter hereafter." He 
continues this train of reflection regarding the infidelity so 
prevalent at that time, concluding with words, which are of 
special interest, giving expression to a principle which con- 
trolled his private and public conduct throughout his life : 
"At a time when licentiousness is at an amazing and danger- 
ous height we shall be careful to guard against popular preju- 
dice, though we must not blindly oppose the public voice 
because it may appear too tumultuous. Let us do things im- 
partially and not oppose or condemn any conduct on the 
whole, on account of a few improper circumstances attend- 
ing it." 



James Iredell. 7 

His journal shows that he was a diligent student of the 
"Tenures." On July 31, 1771, he writes his father, "I am 
too often troubling you, but I will hope for your excuse of 
this last request, as it will be of particular, perhaps neces- 
sary, service for me. It is that you will be so obliging as to 
procure Dr. Blackstone's Commentaries on the Laws of Eng- 
land and send them by the first opportunity. I have, indeed, 
read them by the favor of Mr. Johnston, who lent them to 
me, but it is proper that I should read them frequently and 
with great attention. They are books admirably suited for 
a young student, and, indeed, may interest the most learned. 
The law there is not merely considered as a profession but a 
science. The principles are deduced from their source and 
we are not only taught, in the clearest manner, the general 
rules of law, but the reasons upon which they are founded. 
* * * Pleasure and instruction go hand in hand, and we 
apply to a science, difficult, indeed, at best, with less reluc- 
tance, when by a well-directed application we may hope to 
understand it with method and satisfaction. I would take 
leave to add one more desire, that you would be pleased to 
send me the Tatlers and Guardians — the Spectators I have, 
and these, with the others, will afford me agreeable desultory 
reading." 

Mr. Johnston was a faithful and competent instructor. 
"As a lawyer he was ever highly honored and esteemed; his 
patience, his industry, his logic were signal. * * * As 
early as 1776 he was one of a committee to revise the statutes 
of the State." He was later one of the State Judges. Mr. 
Iredell received from Governor Tryon a license to practice 
law in all the Inferior Courts of the Province on December 
14, 1770. He was licensed by Governor Martin to practice 
in the Superior Courts ISTovember 26th, 1771, and duly 
qualified at the April Term, 1772. During the intervening 
year, "with healthy but vehement ambition," he prosecuted 



8 James Iredell. 

his studies and regularly attended the courts. "Books be had 
not, save a volume or two stuffed into his saddle-bag with a 
scanty supply of apparel. * * * Iredell early fixed his 
eyes upon the glittering heights of his profession, and so 
self-assured was he of his capacity and industry that he never 
faltered in his purpose — he was resolute to win; and with 
such men to resolve is to compel success. If unemployed in 
the courthouse, he peopled his chambers with judge, jury and 
spectators ; he argued his cases before his imaginary court 
and rej)orted his own arguments." McRee gives an illus- 
tration of his habit of writing out arguments in cases tried 
in the courts, although not employed in them. It is interest- 
ing, both because of the careful and orderly statement of 
the facts and the logical arrangements of argument which 
marked his opinions when called into judicial service. The 
journal shows that, while preparing for his Superior Court 
license, Iredell was diligent in the study of Blackstone's Com- 
mentaries. The work had been j^ublished but a few years 
before and was widely read in America. Burke, in his 
speech on ''Conciliation," stated that the booksellers informed 
him that as large a number of copies had been sold in America 
as in England. Iredell writes in his journal, "Came home 
and read an hour or two in Blackstone." "Employed myself 
all the rest of the evening reading Blackstone." "I imme- 
diately came home and finished the second volume of Black- 
stone." 

The journal, during this year, leaves the reader in doubt 
whether he was most assiduous in his devotions to Miss Han- 
nah Johnston or the great commentator. That he woeed 
both successfully is evidenced by the fact that on January 
18, 1773, he was united in marriage to this estimable lady, 
who "supplemented what he needed. * * * gj^e was 
his constant monitor, adviser, banker and trusted friend. 
* * * Their lives, united in one stream, flowed onward 



James Ikedell. 9 

softly and gently." She was the sister of Governor Samuel 
Johnston. Their correspondence, when separated by his 
riding the circuit in the practice of his profession and, 
later, in the discharge of his high official duties, is both in- 
teresting and instructive. Iredell's grandfather was a clergy- 
man of the Church of England. His early religious training 
and his associations impressed their influence upon his mind 
and character. He was given to religious contemplation and 
often wrote "reflections" upon religious subjects quite re- 
markable for so young a man. Within a year after coming 
to Edenton he writes his Sunday "thoughts," concluding: "I 
am not ashamed to think seriously of religion, and hope no 
example will induce me to treat it with indifference. Youth 
is as much concerned to practice and revere it as any in the 
more advanced stages of life, and I have drawn up the fore- 
going plain, but useful, remarks as thinking it the best way 
of employing my time when I have had no opportunity of 
attending public worship." Writing his brother, he says: 
^'Let me desire you to let no flashes of wit, or impertinent 
raillery of religion, shock your principles or stagger your 
belief. Men of this cast laugh at religion, either because 
they know nothing of it or care nothing for it. Men of shal- 
low understandings or bad hearts are those who generally 
rank themselves in the list of free thinkers." 

The controversies between the Royal Governors and the 
people in North Carolina began at an early day. They con- 
tinued to grow in number and intensity. "Though a King's 
officer, Iredell soon became imbued with the views of the 
American leaders ; felt that his future was identified with 
their future, and determined to participate in their defeat 
or success, to share in their disgrace or glory. He soon 
formed intimacies with the leading men of the Province, 
men whose thoughts were to irradiate subsequent darkness, 
and whose voices were destined to cheer and sustain the peo- 



10 James Ibedell. 

pie in the hour of disaster. Ere long he began with them an 
active correspondence, and his part was so well supported 
that a learned gentleman and most competent judge writes i 
'He was the letter writer of the war. He had no equal 
amongst his contemporaries.' " 

As early as September, 1773, he published his first politi- 
cal essaj, saving, among other things : "'I have always been 
taught, and till I am better informed must continue to be- 
lieve, that the Constitution of this country is founded on the 
Provincial Charter, which may well be considered the 
original contract between the King and the inhabitants." 
''In 1774 the Revolution was fairly inaugurated in ISTorth 
Carolina. ]^owhere were the points in dispute between the 
colonies and Great Britain more clearly stated or more ably 
argued. The people were generally agreed. ■» * * Jt 
is true that none meditated independence as an object of 
desire; but it was foreseen as a possible consequence. The 
contest, that was soon to be developed into flagrant war, was 
eminently, in North Carolina, based upon principle. The 
Whig leaders, ready with the pen and the columns of the 
newspapers and the pamphlets, discussed the tax on tea and 
the vindictive measures that followed the prompt opposition 
of Boston, with a degree of learning and logic that was not 
surpassed by any of their contemporaries in other provinces. 
* * * There was no array of class against class. The 
foremost in talent were foremost in all measures ; they had 
the confidence of the people. The followers of such men as 
Harvey, Johnston, Ashe, Harnett, Hooper, and Caswell could 
not be otherwise than well informed. * * * In the quiet 
retreat of his study, with naught to stimulate but the prompt- 
ings of his own honest heart and, perchance, the smile of his 
noble wife, with patient toil Iredell forged and polished the 
weapons of debate ; if others fixed his mark he recked not 
who claimed the honor of the cast." 



James Ikedell. 11 

Mr. Iredell, at this time, began a correspondence with 
William Hooper, in which they discussed the questions en- 
gaging the attention of thoughtful men. On April 26, 1774, 
Hooper writes him: ''Every man who thinks with candor 
is indebted to you for the share you have taken in this in- 
teresting controversy. * * * You have discussed dry 
truths with the most pleasing language, and have not parted 
with the most refined delicacy of manners in the warmth of 
the contest. * * * I am happy, dear sir, that my con- 
duct in public life has met your approbation. It is a suf- 
frage from a man who has wisdom to distinguish and too 
much virtue to flatter. * * * Whilst I was active in 
contest you forged the weapons which were to give success 
to the cause which I supported. * * * With you I 
anticipate the important share which the colonies must soon 
have in regulating the political balance. They are striding 
fast to independence, and ere long will build an empire upon 
the ruin of Great Britain ; will adopt its Constitution, purged 
of its impurities, and, from an experience of its defects, will 
guard against those evils which have wasted its vigor and 
brought it to an untimely end/j 

The first Provincial Congress "called by the people them- 
selves" — defying the threats of the Royal Governor — met in 
'New Bern August 25, 1774. Iredell's friends, Johnston, 
Hewes, Thomas Jones, and Hooper, were conspicuous mem- 
bers. John Harvey was "Moderator." The first of Iredell's 
political efforts, which have been preserved, was addressed 
to "The Inhabitants of Great Britain." The address is set 
out in full in McRee's "Life and Correspondence," and con- 
tains an able and exhaustive statement and defense of the 
cause of the Americans. He gives the history of their coming 
and settling the province, the provisions of their charters and 
the violations of them by the King and his Parliament. 

Iredell soon thereafter settled his accounts and closed his 



12 JaIees Iredell. 

career as Collector, to which position he had been promoted. 
After the 4th of July, 1776, he became deeply interested in 
the proposed form of government to be adopted by the new 
State. He had attended the courts, when open, and had 
given diligent attention to the practice of his profession. 
After the adoption of the Constitution ( November, 1776) 
and the inauguration of a State Government a judicial sys- 
tem was established — ''Iredell drawing the first Court Law." 
At the session of the Assembly, ISTovember, 1777, the State 
was laid off into three judicial districts; Samuel Ashe, 
Samuel Spencer, and James Iredell were appointed judges. 
His appointment was brought about by William Hooper, 
who writes December 23, 1777: "Before this reaches you 
you will have received the information of being promoted 
to the first honors the State can bestow. * * * You will 
be at a loss to conjecture how I could have been accessory to 
this step after you had been so explicit to me on the subject. 
Be assured that I was not inattentive to your objections, nor 
did I fail to mention them and urge them with sincerity to 
every person who mentioned you for the office to which you 
are now designated. * * * j expostulated with them 
upon the impropriety of electing one who in all probability 
might decline, and leave one of the seats of justice vacant. 
* * * Their reasoning prevailed and you have now the 
satisfaction of an unrestricted choice. The appointment has 
been imposed upon you, and therefore you are at perfect lib- 
erty to act or not." Archibald Maclaine wrote : "I can only 
say that if it would answer your purposes as fully as it would 
please your friends and the public, it would give me real 
satisfaction." When it is remembered that at this time Ire- 
dell was but twenty-seven years old ; that only ten years prior 
thereto he had come to the State a youth of seventeen, un- 
known, without wealth or other influences, his election, un- 
sought and against his inclination, to the highest judicial 



James Ikedell. 15 

position in the State, it is manifest that by his personal con- 
duet and character, as well as his learning and ability, he 
had strongly and favorably impressed himself upon the peo- 
ple and their representative men. William Hooper was a 
lawyer of learning and experience, as were other members of 
the Assembly. Maclaine, also an eminent lawyer and mem- 
ber of the Assembly, thus expressed the opinion of his as- 
sociates: "However arduous the task you have undertaken, 
we have the most hopes from your judgment and integrity, 
and these hopes are strengthened by your diffidence. * * •^ 
The members of the Assembly, in appointing you, thought, 
with great reason, that they effectually served themselves and 
their constituents. As to myself, I confess I was actuated 
by duty to the public, having been taught that your promo- 
tion would more effectually serve them than you." Iredell 
accepted the judgeship at much personal sacrifice. The sal- 
ary was totally inadequate for the support of his family. 

Replying to a letter from Governor Burke calling upon 
him to hold Courts of Oyer and Terminer, he says: "In re- 
gard to the courts your Excellency proposed immediately to 
establish, I am always ready to attend them as my duty re- 
quires, but I take the liberty to represent to your Excellency 
that I fear that I shall not be able to defray the expenses they 
will involve me in unless I receive a sum of money from the 
public. * * * I am not ashamed of confessing my 
poverty, as it has not arisen from any dishonorable cause. My 
circumstances have suffered deeply, but if I can bear myself 
above water I am content to suffer still. * * * j shall 
not fail to do my utmost then and at all times in discharge 
of my duty."^ 

He rode one circuit, during which his letters to his wife 
give an interesting account of the country through which he 
traveled, the people with whom he was associated and the 

'State Records of N. C, XXII, 552. 



14 jAiftEs Iredell. 

experiences of a judge ''on circuit" at that early period in 
our history. He went as far west as Salisbury. At the Eden- 
ton term, June 6, 1778, the grand jury requested that he 
furnish his charge for publication, saying: "This charge 
vindicates the American States, in the establishment of inde- 
pendency, by arguments drawn from undeniable rights and 
from real necessity, and grounded on incontestable facts. 
* * * It breathes a spirit of pure disinterested patriot- 
ism, and holds forth the most powerful incentive to persist 
in the opposition which America has so successfully begun. 
It points out persuasively the importance of a faithful ob- 
servation of the various political and relative duties of se- 
curity upon which the happiness of individuals and of the 
whole depends, and which will tend to give stability to our 
present Constitution." 

The language of the charge is spirited, the sentiment pa- 
triotic, with considerable warmth of expression towards the 
King and his ministers. A few extracts will give an idea 
of its general tone. Referring to the fact that no courts had 
been held for a long time, he says : "This court of justice 
opens at a most interesting period of the policy of this coun- 
try. We have been long deprived of such, from a variety 
of causes, in some of which we have shared with our brethren 
on the Continent ; others were peculiar to ourselves. The 
event, however, has been unhappy and distressing, and every 
wellwisher to his country must view with pleasure a scene 
of anarchy changed to that of law and order, and powers of 
government established capable of restraining dishonesty and 
vice. Such powers have been established under circumstances 
which should induce to them peculiar reverence and regard. 
They have not been the effect of usurpation; they have not 
proceeded from a wanton desire of change ; they have not 
been imposed upon you by the successful arms of a tyrant; 
they have been peaceably established by the public at large, 



James Iredell. 15 

for the general happiness of the people, when they were 
reduced to the cruel necessity of renouncing a government 
which ceased to protect, and endeavored to enslave them, 
for one which enabled them, with a proper share of courage 
and virtue, to protect and defend themselves. * * * y^Q 
desired only the privileges of a free people, such as our an- 
cestors had been and such as they expected we should be. 
We knew it was absurd to pretend we should be free when 
laws might, at pleasure, be imposed upon us by another peo- 
ple. * * * Our ancestors came here to enjoy the bless- 
ings of liberty. They purchased it at an immense price. 
Their greatest glory was that they had obtained it for them- 
selves and transmitted it to their posterity. God forbid that 
their posterity should be base or weak enough to resign it, 
or let it appear that the true British spirit, which has done 
such wonders in Engianct, has been lost or weakened by 
being transplanted to America. * * * You will, I hope, 
excuse, gentlemen, the particular, perhaps too great particu- 
larity, with which I have gone into this subject. Yet I 
thought it my duty to point out to you some of the principles 
upon which the revolution in our government has taken place 
and which, in my opinion, prove not only the propriety of 
its being effected, but the indispensable obligation we are 
under to maintain and support it. * * * The struggles 
of a great people have almost always ended in the establish- 
ment of liberty. The enjoyment of it is an object worthy of 
the most vigilant application and the most painful sacrifices. 
Is there anything we read with more pleasure than the suffer- 
ings and contentions of a brave people who resist oppression 
with firmness, are faithful to the interests of their country 
and disdain every advantage that is incompatible with them ? 
Such a people are spoken of with admiration by all future 
ages. **■?«• These are the glorious effects of patriot- 
ism and virtue. They are the rewards annexed to the faith- 



16 JaIies Ieedell. 

ful discharge of that great and honorable duty, fidelity to 
oiir country." 

Eeferring to the burdens laid upon the colonists and 
their right to resist them, he says: "We knew of no right 
they could have to such a power. Our charters did not 
recognize it. It certainly was not in our ancestors' con- 
templation, who left that very country because freedom could 
not be enjoyed in it. Custom had given it no sanction. 

* * * It was reconcilable to no principles of justice. 

* * * We despised the miserable application of a few 
political maxims * * * which to this hour is the basis 
upon which all the fraud, iniquity, injustice, cruelty and op- 
pression that America has experienced from Great Britain 
have been defended. * * * The divine right of kings 
was exploded with indignation in the last century. Men 
came at length to be persuaded that they were created for a 
nobler purpose than to be slaves of a single tyrant. They 
did not confine this idea to speculation; they put to death 
one King and expelled another. This was done in England, 
the seat of our haughty enemies, who seem to think the right 
of resistance is confined alone to their kingdom." When it 
is remembered that this charge was delivered at a time when 
the American cause was far from hopeful, the courage ex- 
hibited was of no low order. Iredell, too, was a conserva- 
tive — but withal a man and a patriot. 

Soon thereafter he sent his resignation to the Governor, 
who accepted it with much reluctance, saying, "as you can 
well conceive, well knowing your place can not be supplied 
by a gentleman of equal ability and inclination to serve the 
State." He continued the practice of the law until, on July 
8, 1779, he was tendered and accepted the position of At- 
torney General. Hooper writes, expressing pleasure that he 
has consented to accept, saying: "I have the happiness to 
assure you that the leading characters in this part of the 



James Iredell. 17 

country [Cape Fear] speak of yon as a capital acquisition 
to onr courts, and exult that there is a prospect of offenders 
being brought to due punishment without the passions of 
party or the prejudice of individuals swaying the prosecu- 
tion." Iredell traveled the circuit, attending the courts in 
the discharge of his duties and receiving a large share of civil 
business. His letters to Mrs. Iredell give an interesting and 
often amusing account of his experiences. From New Bern 
he writes: ''Expenses are enormous. My last jaunt has 
cost me $600 on the road and the depreciation will certainly 
proceed most rapidly, for they are giving away the money 
at the printing office in so public and careless a manner as 
to make it quite contemptible." Again h? writes: "There 
has not been much business, but I have been applied to in 
almost everything. I have already received in civil suits 
1,240 pounds in paper besides nineteen silver dollars. I ex- 
pect to receive tomorrow 500 pounds and my salary for this 
and Edenton Court, which will be 1,000 pounds. * * * 
My fear is that, as usual, the money will be much depreci- 
ated before I lay it out. I shall carefully preserve the hard 
money to the last." From New Bern, at the following term, 
he writes Mrs. Iredell that he has received 4,540 pounds 
"of this currency," 1,350 pounds of Continental, and $9 in 
hard money; that he will receive 1,500 pounds for his salary 
at these courts, "but my expenses here are monstrous — 160 
jDounds a day for my board and lodging only." At Wil- 
mington he was employed in the first admiralty case tried in 
the State of which the record is extant. The Assembly at 
Halifax, 1781, voted the judges 20,000 pounds each and the 
Attorney General 10,000 pounds "for making up the depreci- 
ation of their allowance." Iredell resigned his office (1781), 
of which, writing to his brother, Rev. Arthur Iredell, July, 
1783, he says: "Since then I have been only a private law- 
2 



18 James Iredell. 

yer, but with a show of business very near equal to any law- 
yers in the country." 

After the ratification of the Treaty of Peace and the with- 
drawal of troops from the State, the people began the work 
of restoring their fortunes and enacting laws suited to their 
new political situation. Differences, more or less funda- 
mental, which had manifested themselves during the war, 
became more marked — dividing the leaders and people into 
parties. Iredell was in agreement with the conservatives, 
Johnston, Hooper, Maclaine, Davie, Spaight, and others, in 
opposition to Willie Jones, Thomas Person, Samuel Spencer, 
and others. The former insisted that the State should carry 
out in good faith the terms of the treaty, and adoj)t such 
measures as were necessary for that purpose; enforce con- 
tracts and maintain a strong and stable government. While 
Iredell neither held nor sought any public position, he was 
"in touch," through correspondence and otherwise, with the 
leaders of the party known as Conservatives. He prosecuted 
the practice of his profession with industry and success, rank- 
ing easily with the leaders of the bar. The more radical 
sentiment in the State was disposed to magnify the power of 
the Legislature and oppose any restriction upon it by the en- 
forcement of Constitutional limitations, especially by the 
courts. In an address to the public, Iredell set forth his 
views regarding the enforcement of Constitutional limita- 
tions upon the Legislature. Referring to the Convention 
(ISTovember, 1776), which formed the Constitution, he says: 
"It was of course to be considered how to impose restrictions 
on the Legislature that might still leave it free to all useful 
purposes, but at the same time guard against the abuse of 
unlimited power, which was not to be trusted, without the 
most imminent danger, to any men or body of men on earth. 
We had not only been sickened and disgusted for years with 



James Iredell. 19 

the high aud almost impious language from Great Britain, 
of the omnipotent power of the British Parliament, but had 
severely smarted under the eifects. We felt, in all its rigor, 
the mischiefs of an absolute and unbounded authority, 
claimed by so weak a creature as man, and should have been 
guilty of the basest breach of trust as well as the grossest 
folly if in the same moment, when we spurned at the inso- 
lent despotism of Great Britain, we had established a despotic 
power among ourselves. * * * j have no doubt but that 
the power of the Assembly is limited and defined by the Con- 
stitution. It is a creature of the Constitution. * * * 
These are consequences that seem so natural, and indeed so 
irresistible, that I do not observe that they have been much 
contested. The great arg-ument is, that although the As- 
sembly have not a right to violate the Constitution, yet if 
they in fact do so, the only remedy is either by a humble 
petition that the law may be repealed or a universal resist- 
ance of the people. But, in the meantime, their act, what- 
ever it is, is to be obeyed as a law; for the judicial power 
is not to presume to question the power of an act of As- 
sembly." He proceeds, with remarkable clearness and force, 
to set forth his opinion upon this question, expressing the 
view which has since been pursued by the courts, both State 
aud Federal. He concludes: "These are a few observations 
that have occurred to me on this subject. They are given by 
a plain man, unambitious of power, but sincerely and warmly 
interested in the prosperity of his country; feeling every re- 
spect for the Constitutional authority of the Legislature 
which, in his opinion, is great enough to satisfy an ambi- 
tious as well as support the efforts of a public-spirited mind, 
but a determined enemy on all occasions of arbitrary power 
in every shape whatever, and reverencing beyond expression 
that Constitution by which he holds all that is dear to him 
in life." It must be remembered that these views were ex- 



20 James Ikedell. 

pressed before any court had lield that it was within the 
power and therefore the duty of the judiciary to refuse to 
enforce statutes passed without Constitutional warrant. The 
question had been mooted, and in one case passed upon, prior 
to the date of Iredell's address (1786), but the opinion of the 
Court had not been published beyond the jurisdiction in which 
it was decided. Richard Dobbs Spaight, while a member 
of the Convention at Philadelphia (August 12, 1877) in a 
letter to Iredell, refers to the action of the judges in holding 
an act depriving litigants of trial by jury {Bayard v. Single- 
ton, 1 Martin, '42) unconstitutional. He laments "that the 
Assembly have passed laws unjust in themselves and mili- 
tating in their principles against the Constitution in more 
instances than one." He says : ''I do not pretend to vindi- 
cate the law, which has been the subject of controversy; it 
is immaterial what law they have declared void ; it is their 
usurpation of the authority to do it that I complain of, as 
I do most positively deny that they have any such power; 
nor can they find anything in the Constitution, either directly 
or impliedly, that will support them or give them any color 
of right to exercise that authority. * * * It must be 
acknowledged that our Constitution unfortunately has not 
provided a sufficient check to prevent the intemperate and 
unjust proceedings of our Legislature, though such a check 
would be very beneficial, and I think absolutely necessary 
to our well being; the only one that I know of is the annual 
election which, by leaving out such members, will in some 
degree remedy, though it can not prevent, such evils as may 
arise." On August 26, 1787, Iredell answered Mr. Spaight's 
letter at length, saying: "In regard to the late decision at 
New Bern, I confess that it has ever been my opinion that 
an act inconsistent vdth the Constitution was void, and that 
the judges, consistently with their duties, could not carry 
it into effect. The Constitution appears to me to be a funda- 



James Iredell. 21 

mental law, limiting the powers of the Legislature, and with 
which every exercise of those powers must be compared." In 
regard to his apprehension that the power will be abused, 
Iredell says: "If you had seen, as I did, with what infinite 
reluctance the judges came to this decision, what pains they 
took by proposing expedients to obviate its necessity, you 
would have seen in a strong light how little probable it is a 
judge would ever give such a judgment when he thought he 
could possibly avoid it. But whatever may be the conse- 
quences, formed as our Constitiution is, I can not help think- 
ing they are not at liberty to choose, but must in all ques- 
tionable instances decide upon it. It is a subject indeed of 
great magnitude, and I heartily lament the occasion for its 
discussion. In all doubtful cases, to be sure the act ought to 
be supported, it should be unconstitutional beyond dispute 
before it is pronounced such." 

The Convention at Philadelphia having submitted the new 
Federal Constitution to the Legislatures of the States, Iredell 
at once entered upon the task of securing its adoption by the 
people of North Carolina. In no State was the opposition 
more pronounced or determined. The popular leaders of the 
dominant party were active in their opposition, one of the 
most prominent of them declaring that "Washington was a 
d — n rascal and traitor to his country for putting his hand to 
such an infamous paper as the new Constitution." Another, 
said to have been the most popular leader in the State, 
seriously insisted in the Convention upon rejecting it with- 
out discussion, saying that he had made up his mind and was 
sure that others had done so. ''Of all those who were most 
active in pressing upon the people the adoption of the Con- 
stitution Mr. Iredell was undoubtedly the most able and 
energetic." 

At the session of the Legislature ISTovember, 1787, Mr. 
Johnston was elected Governor and Mr. Iredell a member 



22 JImes Iredell. 

of the Council; he was also appointed a commissioner to re- 
vise and collect the Acts of the General Assembly, then in 
force. A convention of the people was called to meet at 
Hillsboro, composed of delegates from the several counties 
and the borough towns. Iredell was elected, unanimously, 
from Edenton. On January 8, 1788, he published a pam- 
phlet entitled "Answer to Mr. Mason's Objections to the New 
Constitution Recommended by the late Convention at Phila- 
delphia," by "Marcus." He stated each of Mr. Mason's 
"objections" in their order, and in the same order answers 
them. It is not within the scope of this sketch to undertake 
a review of Mr. Iredell's "answer" to the celebrated paper 
of Mr. George Mason. The pamphlet made a favorable im- 
pression on the public mind and strongly influenced Iredell's 
future career. The correspondence between Iredell and Wil- 
liam Hooper, William R. Davie and Maclaine gives an inter- 
esting view of the condition of public sentiment in the State 
in regard to the new Constitution. Says one, writing of the 
leaders in the Convention: "The most prominent Federal- 
ists were Iredell, Davie, Governor Johnston, Spaight, Mac- 
lain [sic] and Steele. Foremost in their number and the 
leading spirit of the whole body was Judge Iredell, conspic- 
uous for his graceful elocution, for the apt application of his 
varied learning, his intimate knowledge of the schemes of 
government, and his manly and generous temper. 

"Davie, with spotless plume, towering in intellect, as in 
stature, above the majority of the members, stood like a 
knight of the olden time, lance in hand, the luster of his 
military services played about him and was reflected in flash- 
ing light from hauberk, morion and polished steel. 

"Governor Johnston, the President of the Convention, calm, 
lucid and convincing, seldom participated in the debate; 
when he did, his blows were always delivered with stunning 
effect. 



James Iredell. 23 

"Maclaine, sensible, pointed and vigorous, was the Hotspur 
of his part3\ 

"Steele was laborious, clear-sighted and serviceable by his 
knowledge of men. 

''Willie Jones, although democratic in theory, was aristo- 
cratic in habits, tastes, pursuits and prejudices; he lived 
sumptuously and wore fine linen ; he raced, hunted and 
played cards. A patriot in the Revolution, he was now the 
head of a great party. * * * JJ^ was a loving and 
cherished disciple of Jefferson, and was often taunted with 
his subserviency to Virginia 'abstractions.' He seldom 
shared in the discussions. 

"Judge Spencer, candid and temperate, was in debate far 
superior to his associates. 

"David Caldwell, a Presbyterian divine, was learned and 
intelligent. He had for years discharged the triple functions 
of preacher, physician and teacher. 

''McDowell, the rival of Davie in military renown, was a 
man of action rather than words. 

"Blood worth, by no means the least among them, was one 
of the most remarkable men of the era, distinguished for 
the versatility of his talents and his practical knowledge of 
men, trades, arts, and sciences. The child of poverty, dili- 
gence and ambition had supplied the place of patronage and 
wealth ; he was resolute almost to fierceness, and almost radi- 
cal in his democracy." 

William Hooper, General Allen Jones, William Blount, 
and Judge Ashe were defeated at the polls. 

The debates were conducted with ability and dignity, and 
at times with much asperity. While Davie, Spaight, Mac- 
laine and Johnston bore their share, Iredell was the acknowl- 
edged leader for adoption. The proceedings of the Conven- 
tion are published in Elliott's Debates. The opposition could 
not be overcome and, on the final vote, the Constitution was 



24 JaIies Iredell. 

rejected by a vote of 184 to 84.^ While Iredell was defeated 
lie made many friends and advanced his reputation in the 
State. One of the new western counties was given his name. 
The requisite number of States having ratified the Constitu- 
tion, the new government was organized April 30, 1789, 
Il^orth Carolina taking no part but remaining a free, sover- 
eign, independent State. 

It appears from the letters of the Honorable Pierce But- 
ler, Senator from South Carolina, written from New York, 
August 11, 1789, that Iredell's reputation had extended be- 
yond the borders of the State. He says : "The Southern 
interest calls aloud for some such men as Mr. Iredell to rep- 
resent it — to do it justice." Dr. Williamson ^vi'ites, at the 
same time: ''The North Carolina Debates are considerably 
read in this State, especially by Congress members, some 
of whom, formerly had little knowledge of the citizens of 
North Carolina, have lately been very minute in their in- 
quiries concerning Mr. Iredell. By the way, I have lately 
been asked by a Senator whether I thought you would accept 
a judge's place under the new government if it required your 
moving out of the State, as we are not in the Union." A 
second Convention met at Fayetteville November 2, 1789. 
Iredell was not a candidate for election as a delegate. With 
but little debate the Constitution was ratified and amend- 
ments proposed. A bill was passed establishing a university, 
the names of Samuel Johnston and James Iredell being placed 
at the head of the list of trustees.* 

Maclaine writes Iredell December 9, 1789 : ''What would 
you think of being the District Judge ?" He was soon called 
to a larger field and higher judicial service. On February 
10, 1790, without solicitation on his part, Mr. Iredell was 
nominated by President Washington, and unanimously con- 

'Convention of 1788.— N. C. Booklet, Vol. IV. 

'Battle's History of the University of North Carolina, 821 



James Iredell. 25 

firmed by the Senate, one of the Associate Justices of the 
Supreme Court of the United States. He was just thirtj- 
iiine vears old. The President enclosed his commission with 
the following letter: "One of the seats on the bench of the 
Supreme Court of the United States having become vacant 
bv the resignation of the gentleman appointed to fill the 
same, I have thought fit, by and with the advice and consent 
of the Senate, to appoint you to that office, and have now 
the pleasure to enclose you a commission to be one of the 
Associate Judges of the Supreme Court of the United States. 
You have, sir, undoubtedly considered the high importance 
of a judicial system in every civil government. It may 
therefore be unnecessary for me to say anything that would 
impress you with this idea in respect to ours. * * * I 
must, however, observe that, viewing as I do the Judicial 
System of the United States as one of the main pillars on 
which our National Government must rest, it has been my 
great object to introduce into the high offices of that depart- 
ment such characters as, from my own knowledge or the best 
information, I conceived would give dignity and stability to 
the government * * * at the same time that they added 
luster to our national character." It is said that "Washing- 
ton derived his conviction of Iredell's merits from a perusal 
of the Debates in the North Carolina Convention and the 
famous reply to George Mason's objections."^ Butler wrote 
Iredell February 10th : "I should have been happy to have 
had you in Congress. The Union will no longer be deprived 
of your aid and the benefit of your abilities. * * * J 
congratulate the States on the appointment and you on this 
mark of their well-merited opinion of you." Acknowledging 
the letter from the President, Iredell writes : "In accepting 
this dignified trust I do it with all the diffidence becoming 
the humble abilities I possess ; but, at the same time, with 



'Carson's History of the Supreme Court, 155. 



26 JImes Ikedell. 

the most earnest resolution to endeavor by unremitting ap- 
l)lication a faithful discharge of all of its duties, in the best 
manner in my power." Judge Iredell was assigned to the 
Southern Circuit and entered upon the work immediately. 
He reached Charleston May 23, 1790, and there met Mr. 
Rutledge before whom he took the oath of office. He writes 
Mrs. Iredell : *'I have received the greatest and kindest 
civilities from Mr. Rutledge, at whose house I have the 
pleasure of staying." He proceeded to Savannah. There 
was but little business in the new Court other than organiz- 
ing the Circuit Courts and putting the new judicial system 
in working order. Supposing that the judges would "rotate" 
in the Circuit Court work, he removed his family to i^ew 
York. The Court having, to his surprise, adopted the rule 
which confined judges to one circuit — Iredell's being the 
Southern — he found himself very much embarrassed. The 
long distance to be traveled (1,900 miles) twice each year 
was a severe tax upon his health and strength. He justly 
complained of the arrangement to the Chief Justice, who 
conceded that "your share of the task has hitherto been more 
than in due proportion." Although the judges refused to 
make a more equitable rule, by exchanges, they sometimes 
rode different circuits. Justice Iredell took his seat with the 
Chief Justice and his associates at the August Term, 1790. 
No business was transacted, the Court adjourning siiie die. 
Iredell again rode the Southern Circuit, but it does not ap- 
pear that there was much business to engage his attention. 

William Hooper, to whom Iredell was strongly attached, 
and for whose character and talents he had the highest re- 
gard, died October 14, 1790. Writing a letter of condolence 
to Mrs. Hooper, Iredell said: "An attachment founded on 
the most perfect esteem and upon a gratitude excited by 
repeated and most flattering obligations, ought not, and, in 
me, I trust is not capable of being weakened by any change 
of place, time or circumstance." 



James Ikedell. 27 

A suit was instituted at this time in the State Court against 
Iredell and his co-executor upon a bond given by their tes- 
tator to a British subject. His co-executor pleaded the '*Con- 
fiscation Act," in which Iredell refused to join. By direc- 
tion of Justices Wilson, Blair and Kutledge a writ of certi- 
orari was issued to the State Court, which the judges refused 
to obey. As an indication of the jealousy of the new gov- 
ernment in the State, the General Assembly adopted a reso- 
lution declaring that "The General Assembly do commend 
and approve of the conduct of the judges of the Courts of 
Law and Courts of Equity in this particular."*' At the same 
session the House of Commons, by a vote of twenty-five to 
fifty-five, refused to adopt a resolution requiring the Gov- 
ernor and other State officials to take an oath "to support the 
Constitution of the United States." 

On the Southern Circuit at Savannah (1791) a question 
arose, stated by Judge Iredell, as follows: "There were 
depending some suits for the recovery of debts, to which pleas 
were put in by the defendants, not denying the existence of 
the debts, but showing (as they conceived) a right in the 
State of Georgia to recover them under certain Acts of As- 
sembly of the State passed prior to the Treaty of Peace. The 
Attorney and Solicitor General of the State were directed to 
interfere in the defense, but the counsel for the defendants 
refused to permit them. The Attorney and Solicitor Gen- 
eral, being dissatisfied with the pleas, applied to the Court 
for leave to interfere in behalf of the State." Judge Iredell 
was of the opinion that the State could appear only in the 
Supreme Court, and for this reason denied the motion. He 
suggested that the State had a remedy by an appeal to the 
Equity jurisdiction of the Supreme Court. Deeply impressed 
with the gravity as well as the novelty of the question he 
writes: "I have been thus particular in stating this inter- 

sState Records, XXI, 441, 865, 1080, 1082. 



28 Ji.MES Iredell. 

esting subject, because it appears to me of the highest mo- 
ment, although I believe it would be difficult to devise an un- 
exceptionable remedy. But the discussion of questions 
wherein are involved the most sacred and awful principles 
of public justice, under a system without precedent in the 
history of mankind, necessarily must occasion many embar- 
rassments which can be more readily suggested than re- 
moved." Out of these suits arose the celebrated case of 
Georgia v. Brailsford, 2 Dallas, 402 ; 3 Dallas, 1. 

At the April Term, 1792, of the Circuit Court at Sa- 
vannah Judge Iredell delivered a charge to the grand jury 
which so impressed the members that they unanimously re- 
quested its publication. A number of his "charges" in other 
circuits were published at the request of the grand juries. 
At the June Term, 1792, at the Circuit Court at Raleigh, 
^. C, Judge Iredell, with District Judge Sitgreaves, was 
confronted with a delicate question. Congress had enacted 
a statute directing that the invalid pension claims of widows 
and orphanji should be exhibited to the Circuit Courts ; that 
those to whom the Court gTanted certificates should be placed 
on the Pension list, subject to the review of the Secretary of 
War. Conceiving that the duties thus imposed were not ju- 
dicial in their character, and therefore not authorized by the 
Constitution, which carefully separated the powers and duties 
of each department of the Govermnent, Judge Iredell pre- 
pared a remonstrance, addressed to the President, in which 
he said : 

''We beg leave to premise that it is as much our inclina- 
tion as it is our duty to receive with, all possible respect every 
act of the Legislature, and that we never can find ourselves 
in a more painful situation than to be obliged to object to 
the execution of any, more especially to the execution of one 
founded on the purest principles of humanity and justice, 
which the actual question undoubtedly is. But however 



James Iredell. 29 

lamentable a diflference really may be * * * we are 
under the indispensable necessity of acting according to the 
best dictates of our judgment." He set forth at length the 
reasoning by which he had been brought to the conclusion 
that he could not, with proper regard to the Constitutional 
distribution of powers, execute this statute, concluding: "The 
high respect we entertain for the Legislature, our feelings as 
men for persons whose situation requires the earliest as well 
as the most effectual relief, and our sincere desire to pro- 
mote, whether officially or otherwise, the just and benevolent 
views of CongTess, so conspicuous on this as well as on many 
other occasions, have induced us to reflect whether we could 
be justified in acting under this act personally in the char- 
acter of commissioners during the session of a court ; and 
could we be satisfied that we had authority to do so we would 
cheerfully devote such part of our time as might be necessary 
for the performance of the service." The other Justices ad- 
dressed similar letters to the President. The question was 
brought before the Court by a motion made by Attorney Gen- 
eral Randolph, ex officio, for a mandamus directed to the Cir- 
cuit Court for the District of Pennsylvania, commanding the 
Court to proceed to hear the petition of William Hayburn, 
etc. The Court being divided in opinion whether he could 
make the motion ex officio, he was permitted to do so on be- 
half of Hayburn. JSTo decision was made at the time and 
Congress soon thereafter "made other provisions for the re- 
lief of pensioners." Judge Iredell, until the act w^as re- 
pealed, heard a large number of petitions as commissioner. 
He writes Mrs. Iredell from Hartford, Connecticut, Sep- 
tember 30, 1792 : "We have a gTeat deal of business to do 
here, particularly, as I have reconciled myself to the pro- 
priety of doing the invalid business out of court." In United 
States r. Ferreria, 13 Howard, 51, Chief Justice Taney says 
of the action of the Court: "The repeal of the act clearly 



30 ^AMEs Iredell. 



^1 



shows that the President and Congress acquiesced in the cor- 
rectness of the decision, that it was not a judicial power." 
Following the refusal to permit Georgia to intervene in 
the Brailsford case, in the Circuit Court, the State filed a 
bill in equity in the Supreme Court, alleging that the title 
to the bond, upon which the action in the Circuit Court was 
brought, was, by virtue of an act passed during the war, 
confiscating and sequestrating the property and debts of 
British subjects in the State. The Court was asked to enjoin 
the plaintiffs from proceeding, etc. Each of the Judges wrote 
opinions. Iredell observed that he had sat in the Circuit 
Court and refused the motion of the State to intervene. He 
said that the Court could not, with propriety, sustain the 
aj^plication of Greorgia because whenever a State is a party 
the Supreme Court has exclusive jurisdiction of the suit. 
The State, therefore, did not have a complete and adequate 
remedy at law. ''Every principle of law, justice and honor, 
however, seem to require that the claim of the State of Georgia 
should not be indirectly decided or defeated by a judgment 
pronounced between parties over whom she had no control, 
and upon a trial in which she was not allowed to be heard." 
He was of the opinion that an injunction should be awarded 
to stay the money in the hands of the Marshal until the 
Court made further orders, etc. The Court was divided in 
opinion, the majority holding that an injunction should issue 
until the hearing. At the February Term, 1793, a motion 
was made by Randolph to dissolve the injunction. Iredell 
was of the opinion that the motion should be denied. He 
held that, for several reasons, the State could not sue on the 
bond at law, asking: "How is she to obtain possession of 
the instrument without the aid of a Court of Equity ?" point- 
ing out the practical difficulties which she would encounter 
in securing the bond. To the suggestions that the State could 
bring an action of assumpsit for money had and received 



James Ikedell. 31 

against Brailsford, which he termed "the legal panacea of 
modern times," he conclusively answers that while the action 
"may be beneficially applied to a great variety of cases, it 
can not be pretended that this form of action will lie before 
the defendant has actually received the money," and this 
Brailsford has not done. He suggests that the injunction 
be continued, and an issue be tried at the bar to ascertain 
whether the State of Georgia or Brailsford was the true 
owner. Although a majority of the Judges were of the opin- 
ion that the State had an adequate remedy at law, the course 
suggested by Iredell was substantially pursued. At the Feb- 
ruary Term, 1794, an amicable issue was submitted to a 
special jury. The argument continued for four days, when 
the Chief Justice instructed the jury: ''The facts compre- 
hended in the case are agreed ; the only point that remains is 
to settle what is the law of the land arising upon those facts ; 
and on that point it is proper that the opinion of the Court 
should be given." He says that the opinioiFHf the Court is 
unanimous, that the debt was subjected, not to confiscation, 
but only to sequestration, and that therefore the right of the 
creditor to recover it was revived at the coming of peace, 
both by the law of nations and the Treaty of Peace. It is 
not very clear what question of fact was submitted to the de- 
cision of the jury. He further instructed the jury that 
while it was the "good old rule" that the Court should decide 
questions of law and the jury questions of fact, the jury have 
a right, nevertheless, to take upon themselves to judge of 
both and to determine the law as well as the facts. The 
learned Chief Justice suggests that the Court "has no doubt 
that you will pay that respect which is due to the opinion 
of the Court; for, as on the one hand, it is presumed that 
juries are the best judges of facts, it is, on the other hand, 
presumable that the courts are the best judges of law. But 
still both objects are lawfully within your power of decision." 



32 James Iredell. 

Notwithstanding the facts were agreed upon and the Court 
was ananimous in opinion in regard to the law, the jury, 
"after being absent some time," returned to the bar and pro- 
posed certain questions of law, which being answered, "with- 
out going away from the bar," they returned a verdict for the 
defendant. The case has the distinction of being the only 
one in which a jury was empaneled in the Supreme Court. 
Flanders says: "The charge of the Chief Justice to the 
jury is curious, from the opinions he expressed as to the ex- 
tent of their powers. His statement of the law on that point 
is clearly erroneous."^ Mr. James Scott Brown says : "The 
judgment was clearly right, but the statement of the Chief 
Justice that the jury was judge of the law, as well as the 
facts, is open to serious doubt."^ 

In Chishohn v. Georgia^ 2 Dallas, 419, standing alone, Ire- 
dell enunciated and, with a wealth of learning and "arsenal 
of argument," maintained the position that a State could not 
be "haled into court" by a citizen of another State. The 
question arose in an action of assmnpsit instituted in the 
Suj)reme Court against the State of Georgia, process being 
served upon the Governor and the Attorney General. The 
State refused to enter an appearance, but filed a remonstrance 
and protest against the jurisdiction. The Attorney General, 
Randolph, representing the plaintiff, lodged a motion that 
unless the State entered an appearance and showed cause to 
the contrary, by a. day named, judgment by default and in- 
quiry be entered, etc. This motion was argued by Randolph, 
the State not being represented. Each of the justices filed 
opinions. Iredell first aijalyzed the provisions of the Consti- 
tution conferring jurisdiction upon the Court in controversies 
wherein a State was a party. He quotes the language of the 
Judiciary Act distributing the jurisdiction in such cases. 

'Lives of the Chief Justices, 393. 
^Great American Lawyers, Vol. I, 285. 



James Iredell. 33 

He dwells somewhat on the meaning which should be given 
to the word '^controversies" in the Constitution, with the sug- 
gestion that the use of this word indicated a purpose to so 
restrict the causes in which jurisdiction was conferred as to 
exclude actions at law for the recovery of money. He pro- 
ceeds to consider the question whether it is necessary for 
CongTess to prescribe a method of procedure in controversies 
wherein the State is a party. He argues that while the ju- 
dicial department of the government is established by the 
Constitution, the Congress must legislate in respect to the 
number of the Judges, the organization of the Supreme and 
such inferior courts as may be established, etc. He quotes 
the fourteenth section of the Judiciary Act, in which power 
is conferred upon the courts to issue writs of scire facias, 
habeas corpus, and all other writs not specially provided for 
by statute, which may be necessary for the exercise of their 
respective jurisdictions and "agreeable to the principles and 
usages of law," noting the fact that "neither in the State 
now in question, nor in any other in the Union, any particu- 
lar legislation authorizing a compulsory suit for the recovery 
of money against a State was in being, either when the Con- 
stitution was adopted or at the time when the Judicial Act 
was passed," and concludes that only principles of the com- 
mon law, a law which is the ground work of the laws in every 
State in the Union and which, so far as it is applicable to 
the peculiar circumstances of the country, and when no 
special act of legislation controls it, is in force in such State, 
as it existed in England at the time of the first settlement of 
this country ; that no other part of the common law of Eng- 
land can have any reference to the subject but that which 
prescribes remedies against the Crown. Thus he is brought 
to the decision of the real question in the case. It is mani- 
fest that if, until Congress has prescribed some mode of pro- 
cedure by which, in controversies wherein the State is a 
3 



34 JJ^MES Iredell. 

party, the Court must proceed by a mode "agreeable to the 
principles and usages of law," and, to find such principles 
and usages, resort must be had to the common law, the ques- 
tion necessarily arises whether the States of the Union, when 
sued, are to be proceeded against in the same manner as, by 
the common law, is prescribed for proceeding against the 
Sovereign. It is just at this point that the line of thought 
between Iredell and Wilson divides. The former says : 
"Every State in the Union, in every instance where its sov- 
ereignty has not been delegated to the United States, I con- 
sider to be as completely sovereign as the United States in 
respect to the powers surrenderd ; each State in the Union 
is sovereign as to all the powers reserved. It must neces- 
sarily be so, because the United States have no claim to any 
authority but such as the States have surrendered to them; 
of course the powers not surrendered must remain as they 
did before. * * * So far as the States, under the Con- 
stitution, can be made legally liable to this authority, so far, 
to be sure, they are subordinate to the authority of the United 
States, and their individual sovereignty is, in this respect, 
limited. But it is limited no further than the necessary exe- 
cution of such authority requires." It will be observed that 
Iredell is not, at this point in the argument, discussing the 
question whether it is within the power of Congress to pre- 
scribe a mode of procedure for bringing a State into the Fed- 
eral Court to answer for a money demand by a citizen of 
another State. The argument is that, until it has done so, 
the only method of proceeding against a State is that pre- 
scribed by the common law for proceeding against the Sover- 
eign. It therefore becomes necessary to follow the argument 
and establish the proposition that prior to the formation and 
ratification of the Constitution each State was a sovereign, 
and that in ratifying the Constitution it did not part, in re- 
spect to the mode of proceeding against it in a controversy in 



James Iredell. 35 

the Federal Courts, with its sovereignty. He proceeds to give 
an exhaustive and interesting history of the method of pro- 
cedure for the recovery of money at the common law against 
the King. The history of the law in England in this re- 
spect, although very interesting, has no permanent interest 
to the student of American Constitutional law. He thus con- 
cludes this branch of the discussion : "I have now, I think, 
established the following propositions : First, that the Court's 
action, so far as it affects the judicial authority, can only be 
carried into effect by acts of the Legislature, appointing 
courts and prescribing their method of procedure ; second, 
that Congress has provided no new law, but expressly re- 
ferred us to the old; third, that there are no principles of 
the old law to which we must have recourse that, in any 
measure, authorizes the present suit, either by precedent or 
analogy." 

This conclusion was sufficient, from Iredell's point of 
view, to dispose of the case before the Court, but Judge Wil- 
son, who wrote the principal opinion for the majority, threw 
down the gauntlet and challenged the basic proposition upon 
which Iredell's argument was founded. Here we find the line 
of cleavage between the two schools of thought upon the 
fundamental conception of the relations which the States 
bore to the Federal Government. Iredell was a Federalist, 
Wilson a l^ationalist. Wilson opened his opinion with these 
words: ''This is a case of uncommon magnitude. One of 
the parties to it is a State, certainly respectable, claiming to 
be sovereign. The question to be determined is whether this 
State, so respectable and whose claim soars so high, is amen- 
able to the jurisdiction of the Supreme Court of the United 
States ? This question, important in itself, will depend on 
others, more important still ; may, and perhaps will be, ulti- 
mately resolved into one no less radical than this — do the 
people of the United States form a nation ?" Iredell was 



36 James Iredell. 

not a man to conceal his opinions when either propriety or 
duty demanded their expression. Meeting his associate upon 
the ^'main question," ''So far as this great question affects 
the Constitution itself, if the present afforded, consistently 
with the particular grounds of my opinion, a proper occasion 
for a decision upon it, I should not shrink from its discus- 
sion. But it is of extreme moment that no Judge should 
rashly commit himself upon important questions, which it is 
unnecessary for him to decide. My opinion being thf.! even 
if the Constitution would admit of the exercise of such a 
power, a new law is necessary for the purpose, since no part 
of the existing law applies, this alone is sufficient to justify 
my determination in the present case. So much, however, 
has been said on the Constitution that it may not be im- 
proper to intimate that my present opinion is strongly against 
any construction of it which will admit, under any circum- 
stances, a compulsive suit against the State for the recovery 
of money. I think every word in the Constitution may have 
its full effect without involving this consequence, and noth- 
ing but express words or an insurmountable implication 
(neither of which I consider can be found in this case) 
would authorize the deduction of so high a power. * * * 
A State does not owe its origin to the government of the 
United States, in the highest or any of its branches. It was 
in existence before it. It derives its authority from the same 
pure and sacred source as itself, the salutary and deliberate 
choice of the people." He thus lays down a canon of Con- 
stitutional construction : "If, upon a fair construction of the 
Constitution of the United States, the power contended for 
really exists, it undoubtedly may be exercised, though it is a 
power of first impression. If it does not exist upon that au- 
thority, ten thousand examples of similar powers would not 
warrant its assumption." That Iredell was in harmony with 
Hamilton is manifest from the following language used by 



James Iredell. 37 

him iu the Federalist: "It is inherent in the nature of sov- 
ereignty not to be amenable to the suit of an individual with- 
out its consent. This is the general sense and the general 
practice of mankind, and the exemption, as one of the at- 
tributes of sovereignty, is now enjoyed by the government 
of every State in the Union. Unless, therefore, there is a 
surrender of this immunity in the plan of the Convention, 
it will remain with the States, and the danger intimated 
must be merely ideal. * * * There is no color to pre- 
tend that the State governments would, by the adoption of 
that plan, be divested of the privilege of paying their own 
debts in their own way, free from every restraint but that 
which flows from the obligation of good faith. "^ So Madi- 
son declared in the Virginia Convention. "It is not within 
the power of individuals to call a State into court."^^ Mar- 
shall, meeting the same objection to the Constitution, said: 
"I hope that no gentleman will think that a State will be 
called to the bar of the Federal Court. * * * It is not 
natural to suppose that the sovereign power should be dragged 
before a court." 

Mr. Carson, writing of the opinion of the Court in Chis- 
holm's case, says : "From these views Iredell alone dis- 
sented in an able opinion, of which it has been said that it 
enunciated, either directly or by implication, all the leading 
principles which h^ve since become known as State Rights' 
Doctrine and which as a legal argument was far superior in 
clearness of reasoning to Wilson or Jay. He confined him- 
self strictly to the question before the Court, whether an 
action of assumpsit would lie against a State. "^^ 

In his "Lives of the Chief Justices" Van Santvord says: 
"These views [of the majority] were not concurred in by 
Judge Iredell, who delivered a dissenting opinion. That 

"No. 81 (J. C. Hamilton, Ed. 602). 
"•Elliott's Debates, 2d Ed., 533. 
"Hist. Sup. Court, 174. 



38 J^AMES Iredell. 

able jurist considered the question also in a Constitutional 
point of view, and as a question of strict construction. With 
great force of reasoning, and admirable precision and clear- 
ness of illustration, he analyzed the argument of the Attorney 
General, and arrived at exactly the opposite conclusion. His 
opinion was that no part of the existing law applied to this 
case; and even if the Constitution would admit of the exer- 
cise of such a power, a new law was necessary to carry the 
power into effect, and that assumpsit at the suit of a citizen 
would not lie against a State. One can scarcely arise from 
a careful perusal of this able opinion without being sensibly 
impressed with the force of the reasoning of the learned 
Judge, and the accuracy of his deductions. Lucid, logical, 
compact, comprehensive, it certainly compares very favor- 
ably with that of the Chief Justice in every respect, and as a 
mere legal argument must be admitted to be far superior.^" 
* * * As a constitutional lawyer Judge Iredell had no 
superior upon the bench. His judicial opinions are marked 
by great vigor of thought, clearness of argument, and force 
of expression. He did not always concur with the majority 
of his brethren in their constitutional constructions, and on 
such occasion rarely failed to sustain his positions by the 
strictest legal as well as logical deductions. In the interest- 
ing case of Ware v. Hylton, 3 Dallas, 199, his dissenting 
opinion exhibits uncommon research, learning, and ability. 
As a legal argument it may be regarded as one of the best 
specimens that have been preserved of the old Supreme 
Court."^^ 

"The rough substance of my argument in the suit against 
the State of Georgia," bearing date "February 18, 1793," as 
penned by the author, is before me. The writing is neat, the 
"headings" carefully arranged, a few erasures — interline- 

»2Page 60. 
"/b.,p. 61. 



James Iredell. 39 

ations — showing care and caution in the form of expression. 
The argument covers twenty-three pages ; the paper is well 
preserved and the writing distinct. Of this opinion Mr. 
Justice Bradley, in Hans v. Louisiana, 134 U. S., 14 (1889), 
said: ''The highest authority of this country was in accord 
rather with the minority than with the majority of the Court. 
* * * And this fact lends additional interest to the able 
opinion of Mr. Justice Iredell on that occasion. The other 
justices were more swayed by a close observance of the letter 
of the Constitution, without regard to former experience and 
usages ; and because the letter said that the judicial power 
shall extend to controversies between a State and citizens of 
another State, etc., they felt constrained to see in this lan- 
guage a power to enable the individual citizen of one State, 
or of a foreign State, to sue another State of the Union in the 
Federal Courts. Justice Iredell, on the contrary, contended 
that it was not the intention to create new and unheard of 
remedies by subjecting sovereign States to action at the suit 
of individuals (which he showed conclusively was never done 
before), but only by proper legislation to invest the Federal 
Courts with jurisdiction to hear and determine controversies 
and cases between the parties designated that were properly 
susceptible to litigation in courts. Adhering to the mere let- 
ter, it might be so; and so in fact the Supreme Court held 
in Chisholm v. Georgia; but looking at the subject as Hamil- 
ton and Mr, Justice Iredell did, in the light of history and 
experience, and the established order of things, the views of 
the latter were clearly right, as the people of the United 
States subsequently decided. * * * Jn view of the man- 
ner in which that decision was received by the country, the 
adoption of the Eleventh Amendment, the light of history 
and the reason of the thing, we think we are at liberty to 
prefer Justice Iredell's views in this regard." This language 
was approved by Fuller, C. J. ; Miller, Field, Gray, Blatch- 



40 James Iredell. 

ford, and Lamar, Associate Harlan, J., alone dissenting. It 
is not within the purpose or scope of this sketch to enter into 
a discussion of the merits of the great question involved in 
this battle of the giants or of the manner in which they sus- 
tained their conclusions. It is, however, a part of the his- 
tory of the controversy and of the times, that two days after 
the opinion was filed sustaining the jurisdiction, by a majority 
of the Court, the Eleventh Amendment was introduced into 
Congress. ''It was proposed by Mr. Sedgwick, a Repre- 
sentative from Massachusetts, but was passed in the Senate 
as amended by Mr. Gallatin."^* Mr. Guthrie says that Mr. 
Caleb Strong was its author. The words are : "The judicial 
power of the United States shall not be construed to extend 
to any suit, in law or equity, commenced or proceeded against 
one of the United States by citizens of another State or by 
citizens or subjects of foreign States." It is significant that 
the language of the Amendment is declaratory of what, in 
the opinion of Congress, was the correct construction of the 
Constitution. It was essentially a reversal of the decision 
of the Court and writing into the Constitution the dissenting 
opinion of Justice Iredell. This is evidenced by the fact 
that notwithstanding that, in accordance with the decision 
in Chisholm's case, judgment was rendered for the plaintiff 
at February Term, 1794, and a writ of inquiry awarded, the 
Court, at February Term, 1798, in HolUngsivorth v. Vir- 
ginia, 3 Dallas, 378, upon being informed that the Eleventh 
Amendment had been adopted, "delivered an unanimous 
opinion that there could not be exercised any jurisdiction in 
any case, past or future, in which a State was sued by the 
citizens of another State, or by citizens or subjects of any 
foreign State." Mr. William D. Guthrie says: "The un- 
usual and peculiar wording of the Amendment first attracts 
attention. Instead of declaring how the Constitution shall 

"Watson's Const., 1535. 



James Iredell. 41 

read in the future it declares how it shall 'not be construed,' 

* * * The Amendment, therefore, does not pur])ort to 
amend or alter the Constitution, but to maintain it unchanged 
while controlling its scope and effect and thereby authorita- 
tively declaring how it shall not be construed.'"^ Mr. Jus- 
tice Bradley says : "The Supreme Court had construed the 
judicial power as extending to such a suit, and the decision 
was overruled. The Court so understood the effect of the 
amendment."^*' 

With that remarkable prevision which marks him as one 
of, if not the first, prophetic statesman which the world has 
produced, Hamilton points out the- danger and difficulty 
Kvhich lurked in the construction given to the Constitution 
by the majority in Chisholm's case. He says : ''To what 
purpose would it be to authorize suits against States for the 
debts they owed ? How could recoveries be enforced ? It is 
evident that it could not be done without waging war against 
the contracting State; and to ascribe to the Federal Courts, 
by mere implication and in destruction of a preexisting right 
of the State Governments a power which would involve such 
a consequence, would be altogether forced and unwarrant- 
able." This language becomes of present interest in the light 
of the concluding words of the opinion of Mr. Justice Holmes 
in Virginia v. West Virginia. "As this is no ordinary com- 
mercial suit but, as we have said, a quasi-international differ- 
ence referred to this Court in reliance upon the honor and 
constitutional obligation of the States concerned rather than 
ordinary remedies, we think it best, at this stage, to go no 
further but to await the effect of a conference between the 
parties which, whatever the outcome, must take place. 

* * * But this case is one that calls for forbearance 
upon both sides ; great States have a temper superior to that 



>*"The Eleventh Amendment." — Columbia Law Review, March, 1908. 
"Hans V. Louisiana, 134 U. S. 11. 



42 'James Ikedell. 

of private litigants and it is to be hoped that enough has 
been decided for patriotism, the fraternity of the Union and 
mutual consideration to bring it to an end."^'^ Certainly 
the history of attempts to enforce money demands against 
States, through Federal Courts, thoroughly vindicates the 
wisdom of Iredell's view and the apprehension expressed in 
his concluding words: ''This opinion I hold, however, with 
all the reserve proper for one which, according to my senti- 
ments in the case, may be deemed, in some measure, extra- 
judicial. With regard to the policy of maintaining such 
suits, is not for this Court to consider, unless the point in 
all other respects was very doubtful. Policy then might be 
argued from with a view to preponderate the judgment. 
Upon the question before us I have no doubt. I have, there- 
fore, nothing to do with the policy, but I confess, if I was 
at liberty to sjDeak on that subject, my opinion on the policy 
of the case would also differ from that of the Attorney Gen- 
eral. It is, however, a delicate topic. I pray to God that if 
the Attorney General's doctrine as to the law be established 
by the judgment of this Court, all the good he predicts of it 
may take place and none of the evils with which, I have the 
concern to say, it appears to me to be pregiiant." In South 
Dakota V. North Carolina/^ the question, as there presented, 
was discussed and decided against the contention of the State 
by a divided Court of five to four. The present Chief Justice 
wrote a strong and well sustained dissenting opinion, con- 
curred in by Chief Justice Fuller, Justices McKenna and 
Day. The decree there was, however, confined to a statu- 
tory mortgage upon specific property. The question whether 
judgment for a deficiency would be entered was expressly 
reserved. The case was settled by compromise. 

The Court has refused to take jurisdiction in a number of 

I'Virginia v. West Virginia, 220 U. S., 35. 
18192 U. S., 286. 



I 



James Ieedell. 43 

cases where the attempt was made to avoid the provisions of 
the Amendment.^'' 

In Penhallow v. Doaiie,'*^ Judge Iredell wrote an inter- 
esting opinion in which he discussed the relation which each 
of the original colonies bore to each other prior to the forma- 
tion of the Confederation and the power conferred on the 
Confederation to establish Courts of Admiralty, and the effect 
of the judgments of such courts in prize cases. It is not prac- 
ticable to make extracts from this opinion, but the following 
is of especial and permanent interest : "By a State forming 
a republic I do not mean the Legislature of the State, the 
executive of the State, or the judiciary, but all the citizens 
which compose that State and are, if I may so express my- 
self, integral parts of it. * * * In a republic all the 
citizens, as such, are equal, and no citizen can rightfully ex- 
ercise any authority over another, but in virtue of a power 
constitutionally given by the whole community which forms 
such body politic." 

In Talbot v. Jansen,-^ an interesting question was pre- 
sented in regard to the right of expatriation and how it was 
accomplished. Iredell wrote an opinion in which he discussed 
the law of nations, etc. Upon the right of expatriation and 
the limitations upon its exercise the opinion is interesting 
and enlightening. 

In the case of Hylton v. The United States/- involving 
the question whether a tax on carriages was a direct tax, 
Iredell wrote a carefully guarded opinion concurring with 
the other Justices that the tax in question was not a direct 
tax within the meaning of the Constitution, He says: "There 
is no necessity or propriety in determining what is, or is not, 
a direct or indirect tax, in all cases. Some difficulties may 
arise which we do not at present foresee." His caution has 



"Hans V. Louisiana, supra. Christian v. A. & N. C. R. R. Co., 123 U. S., 233; Murray 
V. Distilling Co., 213 U. S., 151. 
2»3 Dallas, 54. 
"3 Dallas 133. 
223 Dallas, 171. 



44 'James Iredell. 

been justified by the history of the attempt to settle this 
much vexed question. Alexander Hamilton appeared for the 
Government. Iredell writes to Mrs. Iredell: "The day be- 
fore yesterday Mr. Hamilton spoke in our court, attended 
by the most crov^ded audience I ever saw there, both Houses 
of Congress being almost deserted on the occasion. Though 
he was in very ill health he spoke with astonishing ability 
and in a most pleasing manner, and was listened to with the 
profoundest attention. His speech lasted three hours. 
* * * In one part of it he affected me extremely. Hav- 
ing occasion to observe how proper a subject it was for tax- 
ation, since it was a mere article of luxury which a man 
might either use or not as it was convenient to him, he added : 
'It so happens that I once had a carriage myself and found 
it convenient to dispense with it.' " 

At the Spring Term, 1793, of the Circuit Court at Rich- 
mond, before Jay, Iredell, and District Judge Grifiin, the 
celebrated case of Ware v. Hylton was heard. During the 
war the Legislature of Virginia passed an act confiscating 
the debts of British subjects and directing the payment of 
such debts to the loan office of the State. The defendant, 
who was indebted to the plaintiff, a British subject, had, in 
obedience to the statute, made a partial payment thereon. 
Suit was brought on the bond. The defendants were repre- 
sented by Patrick Henry, Marshall, Inis and Campbell. Ire- 
dell writes to Mrs. Iredell from Richmond, May 27th: "We 
began on the gTeat British cases the second day of the court, 
and are now in the midst of them. The gi'eat Patrick Henry 
is to speak today. I never was more agreeably disaj)pointed 
than in my acquaintance with him. I have been much in 
his company and his manners are very pleasing, and his 
mind, I am persuaded, highly liberal. It is a strong addi- 
tional reason I have, added to many others, to hold in high 
detestation violent party prejudice." 



James Iredell. 45 

The discussion was one of the most brilliant exhibitions 
ever witnessed at the bar of Virginia. Mr. Henry spoke for 
three consecutive days. The case was argued upon appeal 
at the February Term, 1796, of the Supreme Court," Ire- 
dell wrote an opinion concurring with the majority of the 
Court that the Treaty of Peace enabled the creditor to sue 
for the debt, but was of the opinion (dissenting) that the re- 
covery should be confined to the amount that had not been 
paid into the loan office. He said: "In delivering my opin- 
ion in this important case I feel myself deeply affected by 
the awful position in which I stand. The uncommon magni- 
tude of the subject, its novelty, the high expectation it has 
excited, and the consequences with which a decision may be 
attended, have all impressed me with their fullest force." 
Referring to the argument, he said: "The cause has been 
spoken to, at the bar, with a degree of ability equal to any 
occasion. However painfully I may at any time reflect on 
the inadequacy of my own talents I shall, as long as I live, 
remember, with pleasure and respect, the arguments which 
I have heard in this case. They have discovered an in- 
genuity, a depth of investigation and a power of reasoning 
fully equal to anything I have ever witnessed, and some of 
them have been adorned with a splendor of eloquence sur- 
passing what I have ever felt before. Fatigue has given 
way under its influence and the heart has been warmed 
while the understanding has been instructed." The opinion 
is exhaustive in learning. A competent judge has written 
that "as a legal argument it may be regarded as one of the 
best specimens that have been preserved of the old Supreme 
Court."'* 

Chief Justice Jay having resigned, and the Senate having 
refused to confirm the nomination of Judge Rutledge, there 

233 Dallas, 199. 

s^Van Santvoord, Lives of the Chief Justices. 



46 James Iredell. 

was much speculation as to who would be appointed. Gov- 
ernor Johnston wrote Iredell : ''I am sorry that Mr. Gush- 
ing refused the office of Chief Justice, as I don't know 
whether a less exceptionable character can be obtained with- 
out passing over Mr. Wilson, which would perhaps be a 
measure that could not be easily reconciled to strict neu- 
trality." Iredell writes Mrs. Iredell a few days after: "Mr. 
Ellsworth is nominated our Chief Justice, in consequence 
of which I think that Wilson will resign. * * * The 
kind expectation of my friends that I might be appointed 
Chief Justice were too flattering. Whatever other chance 
I might have had there could have been no propriety in 
passing by Judge Wilson to come at me." 

Iredell rode the Middle Circuit during the spring of 1796. 
His charge at Philadelphia was published at the request of 
the grand jury. At the August Term, 1798, in the case of 
Calder v. Bull, '^ Iredell set forth very clearly his view re- 
specting the power of the judiciary to declare invalid acts 
of the Legislature passed in violation of constitutional limi- 
tations. He says : "In a government composed of legisla- 
tive, executive and judicial departments, established by a 
Constitution which imposed no limits on the legislative power, 
the consequence would inevitably be that whatever the Legis- 
lature chose to enact would be lawfully enacted, and the 
judicial power could never interpose to pronounce it void. 
It is true that some speculative jurists have held that a legis- 
lative act against natural justice must, in itself, be void ; 
but I can not think that under such a government any court 
of justice would possess the power to declare it so. * * * 
It has been the policy of all the American States, which 
have individually framed their State Constitutions since 
the Revolution, and of the people of the United States, when 
they framed the Federal Constitution, to define with pre- 

M3 Dallas, 386. 



James Iredell. 47 

cision the objects of the legislative power and to restrain its 
exercise within marked and settled boundaries. If any act 
of Congress, or of the Legislature of a State, violates those 
Constitutional provisions, it is unquestionably void ; though 
I admit that as the authority to declare it void is of a deli- 
cate and awful nature, the Court will never resort to that 
authority but in a clear and urgent case. If, on the other 
hand, the Legislatures of the Union shall pass a law within 
the general scope of their Constitutional power, the Court 
can not pronounce it to be void merely because it is, in their 
judgment, contrary to the principles of natural justice. The 
ideas of natural justice are regulated by no fixed standard; 
the ablest and the purest men have differed on the subject, 
and all that the Court could properly say in such an event 
would be that the Legislature had passed an act which, in 
the opinion of the Judges, was inconsistent with the princi- 
ples of natural justice." It is doubtful whether this princi- 
ple, peculiar to American Constitutional law, with its limi- 
tations, has been more accurately stated. 

Judge Iredell rode the Eastern Circuit with Judge Wil- 
son. He was much pleased with the people of New Eng- 
land, receiving many courtesies from them. He writes from 
Boston that he soon found himself "engaged for every day 
in the week — sometimes different invitations on the same 
day. Judge Lowell has been particularly kind to me." His 
charge to the grand jury at Boston was published hj request 
and referred to by the editor of the paper as "uniting elo- 
quence with exhaustive knowledge and liberality." From 
Boston he writes: "I have constantly received distinction 
and courtesy here, and like Boston more and more. * * * 
It is scarcely possible to meet with a gentleman who is not 
a man of education. Such are the advantages of schools 
of public authority; every township is obliged to maintain 
one or more to which poor children can have access without 



48 James Iredell. 

any pay." He writes from Exeter, New Hampshire: ''I 
met in Boston with a gentleman who lives in Newbury Port 
of the name of Parsons, who appears to me to be the first 
lawyer I have met with in America, and is a remarkably 
agreeable man." This was Theophilus Parsons, later Chief 
Justice of Massachusetts. He writes that he had dined with 
the Committee and Corporation of Harvard College, "being 
seated next to the Lieutenant Governor, the famous Samuel 
Adams, who, though an old man, has a great deal of fire 
yet. He is polite and agreeable." 

On May 27, 1797, Judge Iredell delivered a charge to the 
grand jury in Richmond, Virginia, which was "animated, 
perhaps too warm." At that time the grand jury frequently 
made presentment of matters which they regarded as worthy 
of public attention, although not the subject of criminal 
prosecution. They presented "as a real evil the circular 
letters of several members of the last Congi'ess, and par- 
ticularly letters with the signature of Samuel J. Cabell, 
endeavoring, at a time of real public danger, to disseminate 
unfounded calumnies against the happy Government of the 
United States, thereby to separate the people therefrom and 
to increase or produce a foreign influence ruinous to the 
peace, happiness and independence of these United States." 
Mr. Cabell made an angry retort, attacking the jury, judge 
and the Supreme Court. He proposed to bring the matter 
before Congress as a breach of privilege. Mr. Jefferson 
urged Mr. Monroe to call it to the attention of the Legisla- 
ture. Just what they proposed to do with the jury or the 
judge does not very clearly appear. Judge Iredell published 
a card in which he said that the charge was prepared before 
he reached Richmond and had been delivered in Pennsyl- 
vania and Maryland; that he was not acquainted with Mr. 
Cabell and knew nothing of the letters referred to by the 
grand jury. He concludes: "With regard to the illiberal 



James Iredell. 49 

epithets Mr. Cabell has bestowed not only upon me, but on 
the other Judges of the Supreme Court, I leave him in full 
possession of all the credit he can derive from the use of 
them. I defy him, or any other man, to show that, in the 
exercise of my judicial character, I have ever been influenced 
in the slightest degree by any man, either in or out of office, 
and I assure him that I shall be as little influenced by this 
new mode of attack by a member of Congress as I can be 
by any other." The political feeling in the country, and 
especially in Virginia, was at that time very bitter. Gov- 
ernor Johnston, Judge Iredell's brother-in-law, and always 
his wise friend, writing him in regard to this incident, said: 
"The answer was very proper, if proper to give it any answer 
at all." He further said that which every Judge knows from 
experience to be true : ''I am sensible of the difficulties with 
which a man of warm feelings and conscious integrity sub- 
mits to bear, without a reply, unmerited censure ; yet I am 
not certain but that it is more suitable to the dignity of one 
placed in high and respectable departments of State to con- 
sider himself bound to answer only when called upon con- 
stitutionally before a proper tribunal." 

Iredell rode the Southern Circuit during the spring of 

1798, suifering much fatigue and discomfort. Judge Wil- 
son, having suffered financial reverses, sought the hospitality 
of Governor Johnston and Judge Iredell, and found in them 
sympathetic friends. His health failed rapidly, resulting 
in his death August 21, 1798. He was buried at Hayes, the 
home of Governor Johnston. His remains were removed to 
Philadelphia a short time since. At the February Term, 

1799, of the Supreme Court, Iredell sat for the last time. 
He filed "one of his best and most carefully written opin- 
ions" concurring with the conclusion reached by the other 
Judges in 8ims v. Irvine.^^ He held the Circuit Court at. 



2«3 Dallas, 425. 

4 



50 James Ieedbll. 

Philadelphia, at which term several of the insurgents were 
on trial for treason. In his last charge to the grand jury 
he dwelt at much length on the law of treason and the Alien 
and Sedition laws. It is manifest that Iredell, as were 
many others, was deeply impressed with the belief that 
French philosophy and infidelity, coupled with the revolu- 
tionary proceedings in that country, were making an impres- 
sion upon the people of this country, finding defenders among 
leaders of public sentiment, seriously threatening the peace 
of the country and the dissolution of the Union. He was a 
Federalist and joined with the members of that party in 
their reverence for Washington. He disliked and distrusted 
the French leaders and their principles. His charge was 
filled with warning against the influence of principles and 
conduct which, in his opinion, were involving the American 
peo]3le in the French Revolution, and the disturbed relations 
of that country with England. His concluding words in 
his last charge to a grand jury are interesting and illustrative 
of the condition of his mind. He says : "If you suffer this 
government to be destroyed what chance have you for any 
other ? A scene of the most dreadful confusion must ensue. 
Anarchy will ride triumphant, and all lovers of order, de- 
cency, truth and justice be trampled under foot. May that 
God, whose peculiar province seems often to have interposed 
to save these United States from destruction, preserve us 
from this worst of all evils, and may the inhabitants of this 
happy country deserve His care and protection by a conduct 
best calculated to obtain them." The grand jury, requesting 
the publication of the charge, say: "At a time like the 
present, when false philosophy and wicked principles are 
spreading with rapidity under the imposing garb of liberty 
over the fairest country of the old world, we are convinced 
that the publication of a charge fraught with such clear and 
just observations on the nature and operation of the Con- 



James Iredell. 51 

stitution and laws of the United States will be highly bene- 
ficial to the citizens thereof." As an illustration of the con- 
dition of public sentiment, Governor Johnston writes Ire- 
dell who, having concluded the trials in Philadelphia had 
come to Richmond, "I am glad that you have got away from 
the land of treason to the land of sedition; the change is 
something for the better." Chief Justice Ellsworth, riding 
the Southern Circuit, writes Iredell from Raleigh, IST. C, 
June 10, 1799 : "My opinion, collected from some gentle- 
men who have been lately traveling in that State (Virginia), 
and others who were at the Petersburg races, presents a 
melancholy picture of that country. These gentlemen re- 
turned with a firm conviction that the leaders there were de- 
termined upon the overthrow of the general government. 
* * * That the submission and assistance of I^orth Caro- 
lina was counted on as a matter of course." The Chief Jus- 
tice, however, adds : "As it was shortly after the election 
these may have been the momentary effusions of disappointed 
ambition." 

Thirty years of constant and wearing work, coupled with 
the climate in which he lived and the long journeys on the 
Southern Circuit, which he rode four times in five years, had 
impaired Judge Iredell's health. He was unable to attend 
the August Term, 1799, of the Court. His illness increased 
until, on October 20, 1799, at his home in Edenton, he passed 
away, in the forty-ninth year of his age. His friend, the 
Rt. Rev. Charles Pettigrew, testified of him: "In the run 
of the above twenty years I have often heard high encomiums 
on the merits of this great and good man ; but never in a 
single instance have I heard his character traduced or his 
integrity called in question." 

His biographer, from whose excellent work I have largely 
drawn in the preparation of this sketch, says that with Judge 
Iredell's papers is an original "Treatise on Evidence," "an 



52 James Iredell. 

* * * Essay on the Law of Pleading," and one on the 
"Doctrine of the Laws of England concerning Real Prop- 
erty so far as it is in use or force in the State of ISTorth Caro- 
lina" ; the two last unfinished. 

When it is remembered that he came to America at seven- 
teen years of age, with neither wealth nor family influence; 
that his opportunities and sources of study were limited by 
the condition of the country; that for seven of the thirty 
years of his life here the country was engaged in war, we 
can, in some degree, appreciate the immense labor which he 
performed and the results which he accomplished. His life 
is a tribute to the teaching and example of his parents, the 
influence of those with whom he was brought into association 
in his adopted home, his industry, talents, patriotism, and 
lofty principles of honor and integrity. 

Judge Iredell left one son, bearing his name, who became 
a lawyer of learning and distinction. Judge of the Superior 
Court, Governor, and United States Senator. He was, for 
many years. Reporter of the Supreme Court of the State 
and author of an excellent work on "The Law of Executors." 
He died during the year of 1853. His descendants are among 
the most honorable, useful and patriotic citizens of the State. 

It has been the purpose of this sketch to set forth, in the 
space which could be allotted, a short survey of the judicial 
work of Judge Iredell. His early death cut short a career 
on the bench full of promise of enlarging scope and useful- 
ness. That he would have continued to develop his high 
judicial qualities and, if permitted, shared with the "Great 
Chief Justice" the work of laying deep and strong the founda- 
tions of American Constitutional law can not be doubted. 
His opinions upon Constitutional questions evince a very 
high order of judicial statesmanship. 



84 



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